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Scott Greenfield asks if John Ashcroft is mean or stupid.  Based on his star turn at Knox College, I’d say mean and cornered.  More at Daily Kos which gives a first hand account of Ashcroft’s mission to justify the transformation of “the role of the Attorney General from a prosecutor of crimes to a preventer of crimes.”

The highlight were the questions posed by the writer of the Kos piece, who asked Ashcroft if he saw any contradiction between the U.S. use of waterboarding today and the war crimes conviction of Japanese soldiers after World War II for essentially the same method of torture.

Read more about the use of water torture by the Japanese, at wooden boat, and expert testimony that water boarding is torture.

Also, if you have the time or inclination, there is this extensive law review article by professor Evan Wallach, “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts,” which was published in the Columbia Journal of Transnational Law.

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Federal prosecutors have announced that they will try the so-called Sears Tower terrorism case for a third time after two previous hung juries resulted in mistrials. The case is an example of preventive prosecution that I wrote about the other day.

The seven were indicted [JURIST report] in 2006 on charges [indictment, PDF] of conspiring to provide material support to al Qaeda; conspiring to provide material support, training, and resources to terrorists; conspiring to maliciously damage and destroy by means of an explosive; and conspiring to levy war against the government of the United States. The indictment alleged that ringleader Narseal Batiste recruited the six other initial defendants to “organize and train for a mission to wage war against the United States government,” and that they pledged an oath to al Qaeda in an attempt to secure financial and logistical backing. Lawyers for some of the men have said that their clients were entrapped [JURIST report] by an FBI informant posing as an al Qaeda operative.

I am trying a very similar case in Southern California, so this is one I’ve been watching closely.

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The Supreme Court ruled today that a search of an arrestee did not violate his Fourth Amendment rights where the arrest was illegal under Virginia state law, but the police had probable cause to arrest.  In Virginia v. Moore,  the defendant had been arrested for a misdemeanor traffic offense and then taken to his motel room where cocaine and money was found.  He was convicted of possession with intent to distribute.  Minor traffic violations  are not arrestable under Virginia law, so the officers did not have state legal authority to make the arrest.  The opinion by Scalia found, though, that the federal standard probable cause is what controls the validity of a search or seizure under the Fourth Amendment, and since there was probable cause to make an arrest, the subsequent transport was valid [slip opinion, here].

It will be interesting to see what effect this ruling will have in the area of administrative searches.  If a car is towed by the authorities, for example, it can be searched for purposes of conducting an inventory of the contents to avoid future claims of theft.  If such a search reveals contraband, the evidence is admissible as long as the search comported with the administrative regulations.  Such searches are often conducted by officers who’s real intent is to find contraband.  It appears at first blush, that merely establishing that such a search was not in compliance with the regulations may not be enough if the State now has fresh ammunition to argue that the regulation is irrelevant as long as the officer had probable cause to search anyway.

 More at SCOTUSblog.

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I normally don’t watch Glenn Beck on CNN Headline News. He seems like a smart guy who is prone to saying stupid things just to draw a reaction. Where is the intellectual challenge in that?

Regardless of my attitudes toward Beck, I saw a remarkable interview on the 21st Beck and Forbes executive editor David Andelman. Essentially, he said out loud what the Green/ecological/progressive movements have been warning about - that the world as we know it cannot be taken for granted.

Here is the interview transcript:

BECK: When it comes to crunching the numbers on oil prices, analysts tend to get a little slippery. When oil was, I think, $60 or $70 a barrel, experts told me that, “Oh, the economy won`t take a hit as soon as the price hits $100 a barrel.” Well, $100 a barrel oil seems like the good old days, quite frankly. This morning, a barrel of oil was just under $118 a barrel.

So what is the real number when the price of oil stops our cars and our economy from running?

David Andelman is the executive editor for Forbes.com.

David, $118 a barrel. That`s not the $3.50 a gallon that we`re seeing right now, because these are oil futures. When does $118 a barrel actually hit us at the pump? And what is that number going to be?

DAVID ANDELMAN, FORBES.COM: Pretty soon. I mean, certainly by the summer. There`s no question we could be seeing $4 oil. Frankly, by a year from now we could be seeing $5 a barrel oil. Remember, in Europe they`re already paying $8…

BECK: OK.

ANDELMAN: … a gallon. A gallon. Absolutely. Eight dollars a gallon they`re paying in Europe. We could be paying $5 here before very long.

BECK: OK. Well, they`re paying $8. I know the UK today, I think, hit $10 a gallon. But that`s — that`s not because of oil prices. That`s because their government is just screwing them at the pump.

ANDELMAN: Well, there is that.

BECK: Yes, but that`s a different story.

So tell me what the number actually is. Because you`re starting to see it now. Food prices are going up. You`re seeing these airlines having problems. Jets were not built, these giant jets were not built to be profitable over $100 a barrel. When do things like trucking, when do they just stop?

ANDELMAN: Well, nothing is going to stop, obviously. But things could get very bad very quickly. There`s no question about that.

Look, OPEC said today it was not going to produce any more oil because — to raise to lower prices. Well, guess what? They can`t. There isn`t any more there. There`s only as much as they`re pumping now. And that`s as much as there`s ever going to be.

Frankly, the peak oil people are probably right. We`ve gotten about as much oil out of the ground or are getting as much oil out of the ground as we possibly can.

So what happens? We keep using more. China is going to be using more. India is going to be using more. They`re all out there using more. We could see $200 a barrel oil very soon, $300 within the next couple of years.

BECK: Wait, wait, wait. David, this — this economy was not built for $100. It`s like we`re like the 727s. We`re not built for that.

ANDELMAN: Nor was society. There seems to be a God-given right in America to think that you can just fly home to Chicago from New York for the weekend. Well, guess what? You`re not going to be able to.

I just booked a ticket to Switzerland. The end of June I have to get over there. Right? I paid a $200 a ticket fuel surcharge on a $600 ticket.

BECK: David, let me ask you this. I read a story just recently that said that intercontinental travel, from flying from, you know, New York to Europe, or — will be a thing of the past for, except for the real rich. And even cross-continental travel will be a once, twice, three times in a lifetime kind of event. Do you believe that to be true?

ANDELMAN: Absolutely. Look, my grandparents, when they came from the old country, they came by boat. And that was the only way they could get here. Look at the Conestoga wagons. That`s how we settled America. We could be back to the Conestoga wagons before long.

BECK: Well, that`s good. I should have stayed on vacation a little - - just a little longer.

ANDELMAN: If you could afford to.

“Serious” people do not say “peak oil” in public, so this was remarkable. Kudos to Beck for accepting a dosage of reality, even though I see it being used as a setup to argue that all biofuels are bad, not just food crop-based ethanol.

Update:  . . . and then he gets all biblical about these trends.

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The World Food Program held a presser on the 22nd where is underscored the dire consequences of a rapid increase in hunger worldwide calling it a silent tsunami:

“This is the new face of hunger — the millions of people who were not in the urgent hunger category six months ago but now are,” Josette Sheeran, executive director of the World Food Program (WFP), said at a London news conference.

. . .

Brown said the “vast” food crisis was threatening to reverse years of progress to create stronger middle classes around the world and lift millions of people out of poverty.

Prices for basic food supplies such as rice, wheat and corn have skyrocketed in recent months, driven by a complex set of factors including sharply rising fuel prices, droughts in key food-producing countries, ballooning demand in emerging nations such as China and India, and the diversion of some crops to produce biofuels . . . the price of a metric ton of rice in parts of Asia had risen from $460 to $1,000 in less than two months.

If you look at the list of causes, none of them are temporary. Oil prices are not expected to go down soon. China and India growth is not expected to tank and climate change is contributing to drought. This story bears very close watching for its ramifications are enormous.

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Bluetooth is the ubiquitous wireless standard most commonly used for handsfree wireless earpieces for cell phones.  Slashdot is reporting that a security researchers in the UK “recorded the movements of 10,000 Bluetooth-enabled devices during their 6-month trial.”  The power of such surveillance may be the ability to correlate who a target is meeting with or even sharing a subway bench.  The scanning of electronic emissions is subject to Fourth Amendment protections when the government uses surveillance devices that are not available to the general public.  (See Kyllo v. United States)  I can see other uses, though, which may not be subject to constitutional protections in settings, such as airports, where the government would argue there is a reduced expectation of privacy and that such scanning is consistent with the TSA’s function of focusing on behavior rather than dangerous devices.

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As I sit in my office listening to surveillance recordings of a rag-tag group of activists being targeted as potential terrorists, I come across this at Balkinization, Prosecution as Prevention in the National Surveillance State :

Since the 9/11 terror attacks the FBI has adopted a strategy of attempting to nip potential terrorist plots in the bud by bringing prosecutions against suspected terrorists based on relatively sparse evidence of criminal conspiracy. This strategy, the FBI contends, has prevented possible future terrorist attacks, but it has resulted in very few convictions, creating a new set of difficult choices for law enforcement and a new set of potential dangers for civil liberties.

This story is yet another example of the gradual shift of the United States from a National Security State to a National Surveillance State. As I have described previously, the National Surveillance State emphasizes ex ante prevention over ex post criminal prosecution. The dangers of such a state are twofold: first, the government will be tempted to create a parallel system of military or law enforcement that routes around the traditional system of criminal procedure protections. The second danger is that the traditional system will increasingly start to look like the parallel system.

Being that I am working on such a case right now, I can’t comment to much, except to say that Jack Balkin is spot on.    New law enforcement units, tools, and equipment have to be used to justify their existence.  It is far easier to target cultural outliers and encourage them to perform acts that may, at first glance, appear criminal than actually solving crimes that have already happened.  When these cases are then tried in criminal courts, where the standard is beyond a reasonable doubt, they often collapse because they are the result of the government taking shortcuts to make arrests and thus inflate their efficacy and thus enhance ever larger security budgets.
One reader at Balkinization offers this comment as to how surveillance should escalate:

There have got to be some sort of reasonable guidelines that can be drawn on surveillance. Just as an offhand thought we might rank groups by level:(1) Legitimate political or religious dissent, no violent or criminal tendancies, surveillance not legitimate.

(2) Angry group, not violent, but may have the potential later on. Allow an infiltrator or informant or two to keep an eye on them, but no more.

(3) Very angry group with violent tendancies. More thorough infiltration allowed. (And just in case Sean or Brett wonder, I think that training private armies in the woods would meet this level. So would some hotter-headed Muslim preachers).

(4) Evidence of an actual conspiracy. At this point the full range of wiretaps, electronic surveillance of the home etc etc would be allows.

(5) In no case should provocateurs luring people into acts they would not otherwise commit be allowed.

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Letting campaign rhetoric drift into foreign policy bragadaccio can be a dangerous thing:

• “A week ago, a senior Iranian army commander said Iran would “eliminate” Israel in response to any military attack from the Jewish state.”
• “I want the Iranians to know that if I’m the president, we will attack Iran,” Clinton said in an interview on ABC’s “Good Morning America.”  “In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them,” she said.

Jake Tapper points out that Clinton’s new tough rhetoric contradicts what she has said in the past about voicing commitments to use military force:

It would seem to me that her threat to Iran is a direct contradiction of her refusal last October to engage in speculation about when she would take military action against Iran, as well as a contradiction of her pish-poshing last August about engaging in foreign policy hypotheticals.

The saber-rattling rhetoric, though, does speak to Clinton’s judgment.  Obviously she felt that this belligerent stance was necessary on the eve of the Pennsylvania primary and is meant to be bootstraped with her 3 a.m. prowess.   The comments are out of step with what the American intelligence community has concluded, that the Iranians halted their nuclear weapons program in 2003 and demonstrate a willingness on Clinton’s part to say anything just to score points.

Her stance raises important questions.  Such as, is there a pre-determined response if Iran were to attack Israel with conventional weapons?  What if Israel is attacked with a suitcase nuke?  Will she assume it was Iran and attack?  Will her belicose attitude allow her to move forward with trying to find some common ground with Iran, such as in Basra?  And, is this nothing but a new line of attack against Obama because he has been spending capital reaching out to Jewish voters in Pennsylvania?

 Odds are that its the latter.  For if Clinton has shown anything in this election, is that she will say anything if it means a bit of short-term gain regardless of the consequences in the long run.

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If Sen. Biden from Delaware had a clue, he’d know that an electronic file name will not necessarily tell you anything about its content. And there is serious talk of him being on the ticket for VP?

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Wikileaks is positing that Guantanamo is being used an offshore-run domestic propaganda operation. By using traceroutes, it found that Wikipedia edits trace back to Gitmo.

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